Thoughts of an activist lawyer

High court on libel: Lost in overbreadth

The recent Supreme Court decision upholding the constitutionality of libel under the Revised Penal Code and under Section 4 C (4) of the cybercrime prevention law but declaring the crimes of aiding and abetting cyberlibel unconstitutional are contradictory rulings, which can only be because of the court’s misappreciation of the doctrine of “overbreadth.”

There is overbreadth where the language of a statute that proscribes speech is so broadly tailored that it could encompass even protected speech.

In this same case, “a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. Those that make unlawful a substantial amount of constitutionally protected conduct may be held facially invalid.”

Courts in the United States have struck down criminal statutes in at least half of the states in the union because first, only falsities made knowing they were false or in utter disregard of its truth should be actionable. This was the ruling of the court in the seminal case of New York Times v. Sullivan.

We have incorporated Sullivan in our jurisprudence in Borjal v. CA and Guingging v. CA. The rationale for this is that “debate on public issues should be uninhibited, robust and wide-open, and … may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.”

In Garrison v. Louisiana, the court ruled that a definition of actual malice including ill will and hatred would still inhibit public debate on public issues: “Even where the utterance is false, the x x Constitution x x x preclude attaching adverse consequences to any except the knowing or reckless falsehood …. even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.”

Under the foregoing rulings, criminal libel was struck down in the United States because as worded, it would encompass at least two types of protected speech:

First, false statements regarding public figures made without knowledge or recklessness outside of fair and true report of any act performed by public officials in the exercise of their functions; and second, true statements regarding public figures not covered by qualified privilege.

In Disini Jr. v. The Secretary of Justice, the Supreme Court upheld criminal libel on the basis that in its latest pronouncement on libel involving Cristy Fermin, the court found that “verily, not only was there malice in law, the article being malicious in itself, but there was also malice in fact, as there was motive to talk ill against complainants.”

Perhaps, unknown to the court, this was precisely why criminal malice suffers from overbreadth because it defines malice as including ill will and not just knowledge of falsity or in utter disregard thereof.

And yet, despite its ruling that criminal libel is constitutional, it held aiding and abetting libel as unconstitutional because of overbreadth: The terms “aiding or abetting” constitute [a] broad sweep that generates [a] chilling effect on those who express themselves through cyberspace posts, comments and other messages.

Hence, Section 5 of the cybercrime prevention law that punishes aiding or abetting libel on the cyberspace is a nullity.

Apparently, the court applied overbreadth where it is uncertain as to who should be held liable for aiding and abetting criminal libel but not for those who will actually be accused of libel using the wrong definition of malice in fact.

There is no basis for this distinction given that facial challenges on overbreadth are allowed precisely because of our constitutional commitment to freedom of expression as a means of ascertaining the truth and the value of a free marketplace of ideas in a democracy.

To say that only an uncertainty of who may be accused of aiding and abetting cyberlibel will lead to a chilling of rights is absurd. As held in Garrison: “Debate on public issues will be inhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred.”

We have in the Disini case a serious misappreciation of overbreadth, which will now certainly cause a chilling of the exercise of the right to free expression.

(Harry Roque is associate professor at the UP College of Law and is petitioner in Adonis et al., v. The Executive Secretary. He argued the issues of libel and cybersex in the oral arguments of the Disini Jr. v. The Secretary of Justice.)